Rules Aim to Reduce Dismissals of DWIs

By Jeff Proctor
Copyright © 2007 Albuquerque Journal; Journal Staff Writer

Far fewer DWI cases would be dismissed because a witness doesn't show up for pretrial interviews, under sweeping rule changes proposed for Metropolitan Court.
The proposed change is yet another attempt to slash the high number of drunken-driving cases dismissed each year.
Of the 7,000 DWIs that go through Metro Court annually, about a third are dismissed without being heard on the merits.
And the most common reason is that police officers fail to appear for pretrial interviews, hearings or trials.
The proposal, published in the Jan. 8 Bar Bulletin, would shift the burden of setting the interviews to the party requesting them— which is usually the defense.
The change would also:

Shorten the amount of time the prosecution and defense have to produce a witness list and other evidence so that there are no last-minute surprises.

Expand subpoena powers, giving prosecutors and defense attorneys the ability to order police officers or other witnesses to appear in court and for pretrial interviews.
One Albuquerque-based defense attorney said the proposal would be favorable to attorneys who are serious about getting information during pretrial interviews.
"The new rule would require the interview to be done early on," said David Serna, a defense attorney. "This gives both sides the opportunity to see whether they really have a case early on.
"The current rule allows for trial by ambush, because as long as interviews are done 11 days before trial, it's OK under the rule."
The proposal comes after a DWI summit in January 2005 convened by Gov. Bill Richardson and Chief Justice Richard Bosson to address the court's dismissal rate.
Another of the summit's recommendations was that an outside study be conducted, examining the court's practices. The study was made public Tuesday.
"This rule proposal combined with the other recommendations in the study will result in a reduction of dismissed cases," Chief Metro Judge Judith Nakamura said Tuesday.
For most DWI trials, the prosecution makes available a list of witnesses, such as officers at the scene. Currently, that list does not have to be presented until 10 days before trial. The new rule would require that the list be prepared 15 days after arraignment.
The defense then requests interviews with the witnesses.
Currently, the party requesting a pretrial interview "sends an e-mail or fax, then just sits back," Nakamura said.
That's because it's the responsibility of the party who named the witness to make that person available for an interview.
But often officers are unavailable because of scheduling conflicts or other reasons.
Many cases are dismissed when defense attorneys tell a judge, "I tried to interview this officer and was unable to do so. I move for a dismissal," Nakamura said.
The new rule would shift the burden to the party who wants the interview.
And it would require that the interviews be completed within 75 days after arraignment.
"So, if you don't take actions early, the right to that interview is lost," Nakamura said.
And the new rule provides subpoena power to ensure that a witness be available.
"Under the proposal, the parties have to try in good faith to get the interview or deposition," Nakamura said. "If they can't work it out together, which is always preferred, they can come to the court and obtain the right to use subpoenas to get the presence of the party who needs to be interviewed."
Serna said attorneys often find it difficult to find police officers for interviews.
"You had to find them wherever you could, and they still had the right to refuse," he said.
The proposal is in the "publication phase," meaning comments are still being taken on it.
Bosson, whose term as chief justice ended Tuesday, said the proposed rule— along with the study's recommendations— would be the biggest step taken since the summit to tackle the dismissal problem at Metro Court.
"At that time, we said we would do some things, and here we are," he said. "In terms of the rule change, we hope it will serve to unclog an already-overburdened court and get more adjudications and pleas versus dismissals."
Previously, the court tinkered with the pretrial-interview rules, but achieved little impact.
The high court, Bosson said, will "most likely adapt some form of this rule a couple of months from now."